For start-ups entering the market, many legal considerations must be taken, including choosing the correct business structure, registration, incorporation, protection of any intellectual property, and ensuring compliance with the relevant laws, regulations, guidelines, etc. It is important for start-ups to include legal considerations for proper risk management and relations with stakeholders, investors, or their employees. There are many challenges faced by start-ups, such as limited access to capital, complex regulations, infrastructure challenges, and limited access to legal support.[1]
Choosing the Right Business Structure
Sole proprietorship is used by small businesses and is the most simple business structure. In this business, the owner is the sole proprietor and is personally liable for the debts and liabilities of the business. This type of structure is best for small businesses with limited capital requirements and individuals who aim to have complete control of the business operations.
partnership is formed by two or more persons. The partners are jointly and severally liable for the debts and liabilities of the business. It is important for the partnership to draft an agreement that includes profit sharing, resolution of any disputes, decision-making, etc.
Limited liability partnership (LLP) is a business structure that has features of a partnership and a company. Here, the partners are not personally liable for the debts and liabilities more than their business investments. This is suitable for businesses with several partners and should include an agreement that includes the distribution of profits, governance, etc.
company is a separate legal entity for its members, including the owner of the company. The company’s shareholders have limited liability and are not personally liable for the business beyond their investment. Companies are appropriate for those who aim to have a formal structure through a board of directors and have higher capital needs.[2]
Read more: Difference between insolvency professional and registered valuer
Registering Your Business
After selecting the business structure, it is necessary that your business be registered with the government, which in India is the Ministry of Corporate Affairs (MCA). You must file an online application on the MCA website, including a Digital Signature Certificate, Director Identity Number, etc. If all the documents are submitted, it may take around 10-15 days. The status for company registration can be checked under the MCA services tab; enter the CIN number and click ‘submit’
Drafting Contracts and Agreements
A start-up has to draft certain contracts and agreements, mainly:
The Co-Founders agreement includes the equity distribution, salary, the duration of the co-founders, and what will happen if one of the co-founders leaves.
Terms of service, privacy policies, and other policies must be included as start-ups have a website for viewers to subscribe to their content. However, these terms and conditions should be tailored to your own business and not simply copy-pasted from another business.
Employment and consultancy agreements are necessary to specify their specific role in the business and keep your start-up’s confidentiality, including trade secrets.
Non-disclosure agreements are drafted when individuals plan potential investments or collaborations, including sharing proprietary details and trade secrets.
Vendor agreements are generally drafted with vendors who provide the business with any goods or services.
Read more: How do stakeholder influence the insolvency resolution process
Protecting Intellectual Property
Trademarks are important during business registration, including the name of the start-up and its logo. If the start-up is in the technology industry, copyright will protect the source code and patents will protect the concept of it. As mentioned above, confidentiality, or trade secrets, are important so that the start-up has a competitive edge in the market, including source code, recipes, etc. The protection of each intellectual property can be done on the official website of India on ipindia.gov
Understanding Employment Laws
Key employment laws relevant to startups:
Companies Act, 2013
Goods and Services Act
Income tax regulations
Digital Personal Data Protection Act, 2023
Securities laws
Labour laws and employment regulations
Compliance and avoiding common legal pitfalls in hiring and managing employees include drafting detailed employment contracts, complying with the wages or salary laws, forming proper workplace policies to ensure a safe work environment, and keeping proper documentation.
Navigating Tax Obligations
There are several tax obligations for start-ups:
Income tax: The rate of income tax varies depending on the profit that the start-up earns. The government has introduced various schemes to help start-ups, for instance, the Startup India initiative.
Good and services tax: The start-ups that supply goods or services must register for GST and pay GST on their sales.
Other taxes: Depending on the type of business, a start-up may also face taxes such as professional tax, customs duty, stamp duty, etc. [3]
To effectively manage taxes and avoid penalties, the start-up should keep financial records, register and file tax returns according to the timelines, keep yourself updated on the tax laws, or hire a consultant to do so on your behalf.
Ensuring Data Privacy and Security
Start-ups face privacy and cyber problems, which means there is a need for secure personal data from unauthorised access. It is necessary that the start-up complies with the Digital Personal Data Protection Act, 2023, the Information Technology Act, 2000, sector-specific regulations (the Reserve Bank of India guidelines), and the Right to Information Act, 2005. Start-ups must keep in mind consent management, data localisation requirements, regular compliance audits, compliance requirements and avoidance of penalties.
Planning for Insolvency
The insolvency proceedings for start-ups when they cannot meet their financial obligations. This may include losing control of the company, liquidation, and, essentially, the funds of the company. Early signs of financial distress include cash flow issues, increasing reliance on credit and debts, and steps to mitigate risks. ,An insolvency course can provide essential strategies for managing and preventing insolvency, which can be found tranzission, providing for proper education and preventing the insolvency process.
Raising Capital Legally
A start-up may raise capital through government schemes, crowdfunding, business loans, strategic partnerships, etc. To ensure compliance with securities laws and regulations. It is necessary to take into account the legal considerations for raising capital. Such as equity financing, debt financing, IP rights, and contractual agreements. These include:
Goods and Services Act, 2017
IPR laws such as the Patents Act, 1970, Information Technology Act, 2000, and the Trademarks Act, 1999
Companies Act, 2013
Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2018
Preparing for Legal Disputes
There are common legal disputes among startups, which include intellectual property distribution. This may occur in patent infringement, ownership, or using a business trademark. To avoid such disputes, the start-ups should ensure the registration, NDAs, employment contracts, etc. Contractual legal disputes generally arise from disagreements over payment terms, breach of contract, scope of work, and quality of goods or services. It is important to have a legal strategy to resolve these disputes, an early engagement with a legal counsel, a dispute resolution plan, and comprehensive documentation.
Conclusion
It becomes important for startups to understand the legal considerations to ensure the business succeeds. It is important that the start-up select the business structure for its registration. Protect IP, guide the tax obligations, and adhere to the legal and regulatory requirements.
: